Federal court ruling deals blow to Bulger immunity claim

Whitey Bulger cannot argue he had a license to kill when he goes to trial for his involvement in 19 murders, a federal judge ruled Monday.

BOSTON -

James "Whitey" Bulger didn't receive the immunity news he was hoping for Monday.U.S. District Court Judge Richard G. Stearns ruled that Bulger may not argue to a jury that he had immunity to commit the crimes for which he is under indictment.

without first obtaining judicial approval. The judge said there was a "paucity of information" provided by the defense about a deal Bulger allegedly struck with the late federal prosecutor Jeremiah O'Sullivan.

Bulger's lawyers, J.W. Carney Jr. and Hank Brennan, had contended that it should be up to a jury, not a judge, to decide if the immunity deal was valid. Although the issue was one of first impression, Stearns wrote that a defendant's rights under an alleged immunity agreement "are determined by the terms and conditions of the bargain as found by the court."

Stearns, who has created one heck of an appellate question with his decision, said Bulger has not, and cannot, point to any federal precedent holding otherwise. "This court has been unable to identify a single instance in which any other defendant has sought to ‘reserve' the details of a ripe immunity claim until trial," the judge said.

"That something has not been done before is, of course, not conclusive of the issue of whether it can be done at all. Here, however, defendant's distinction is one without a difference. That a claim of immunity may be raised at trial does not mean that deferring the decision to do so operates to convert the claim from one of law into a matter of jury-decisional fact."

Stearns also flatly rejected Bulger's argument that forcing him to resolve the immunity claim prior to trial would violate his Fifth Amendment privilege against self-incrimination.

"Resolution of defendant's immunity claim requires an inquiry only into the existence, scope, and validity of the alleged agreement he made with New England Organized Crime Strike Force Chief Jeremiah O'Sullivan," the judge wrote. "It does not require the presentation of evidence regarding the commission of any of the nineteen murders or other crimes with which defendant is charged. The government's motion is thus not only appropriately raised, but calls for pretrial resolution."

Even if the judge down the road should decide that Bulger can make some arguments to the jury about immunity, Monday's ruling makes it clear that Bulger will be barred from ever arguing that he had permission to commit future crimes.

"While the issue has never been presented as starkly as it is in this case, various courts have intimated as much," the judge said.

Stearns cited U.S. v. Black, in which the 6th Circuit construed an ambiguously drafted immunity agreement to exclude protection for future crimes. "A license to kill is even further beyond the pale and one unknown even in the earliest formulations of the common law," Stearns said. "[T]he court concludes that any grant of prospective immunity to commit murder was without authorization and is hence unenforceable under any circumstance."

Meanwhile, the 1st Circuit continues to mull a defense petition that seeks to have Stearns recused from the case. Carney argued at a Jan. 8 hearing that Stearns' prior employment as head of the U.S. Attorney's Criminal Division in Boston and his close friendship with FBI Director Robert Mueller created an appearance of impropriety that requires his recusal.

In my opinion, the longer 1st Circuit panelists Sandra L. Lynch, Bruce M. Selya and David H. Souter keep the issue under advisement, the more likely it is that they will not order the judge's recusal. Obviously, a ruling in Bulger's favor on recusal would seriously call into question Stearns' immunity decision.

Follow David Frank on Twitter @davidfrankmlw

Copyright 2013 by WCVB.comAll rights reserved. This material may not be published, broadcast, rewritten or redistributed.

Forty years ago, one of the greatest boxing matches in history took place in an unlikely setting: the capital of the Philippines. Muhammad Ali's epic win over great rival Joe Frazier in 1975 became known as the "Thrilla in Manila."

Hillary Clinton did not have a State Department email account while she served as America's top diplomat, a senior state department official said Monday, and instead used a personal email account during her four years on the job.